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An Epic Supreme Court Decision on Employment
Legal Interview |
2018/06/01 02:44
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False dichotomy, meretricious piety, and pay-no-attention-to-that-man-behind-the-curtain misdirection are vital arrows in the quiver of any lawyer or judge, no matter of what persuasion.
These tricks were on particularly egregious display in Epic Systems Corp. v. Lewis, a 5-4 decision announced Monday in which the Supreme Court’s conservative majority continued its drive to narrow protection for employee rights. (The opinion, written by Justice Neil Gorsuch, was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito; the dissent, by Justice Ruth Bader Ginsburg, was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.)
The issue in Epic Systems was this: Can an employer require its employees, as a condition of keeping their jobs, to submit to individual arbitration of wage-and-hour and other workplace-condition claims—not only without an option to go to court, but without an option to pursue even private arbitration in common with other employees making the same claim?
Employees’ objection to a “no group arbitration” clause is that individual arbitration may concern amounts too small to make pursuing them worthwhile. Thus, these clauses make it easier for employers to maintain unfair or even unlawful employment structures and salary systems.
The question required the court to interpret two federal statutes—the Federal Arbitration Act (1925) and the National Labor Relations Act (1935). The FAA says that “a written provision in a contract evidencing a transaction involving commerce” requiring the parties to arbitrate instead of litigate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Begin with text: the NLRA states that it is designed to counter “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association.” There is no language like this in the FAA. The best histories of the FAA’s adoption suggest that it was designed to efficiently settle disputes among merchants—business interests with comparable bargaining power. The Act itself says it should not be read to affect “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The sponsors stated during deliberations that it was not designed to cover labor agreements.
Thus, the issue is whether the no-group-arbitration clause, by violating that provision of the NLRA, provides “grounds as exist at law” to bar the employer-imposed requirement of individual arbitration.
Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA. |
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Supreme Court allows Arkansas to enforce abortion restrictions
Blog News |
2018/05/28 02:42
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The Supreme Court is allowing Arkansas to put into effect restrictions on how abortion pills are administered. Critics of a challenged state law say it could effectively end medication abortions in the state.
The justices did not comment Tuesday in rejecting an appeal from the Planned Parenthood affiliate in Arkansas that asked the court to review an appeals court ruling and reinstate a lower court order that had blocked the law from taking effect. The law says doctors who provide abortion pills must hold a contract with another physician who has admitting privileges at a hospital and who would agree to handle complications.
The law is similar to a provision in Texas law that the Supreme Court struck down in 2016. The U.S. 8th Circuit Court of Appeals reversed the court order barring enforcement of the law, but put its ruling on hold while Planned Parenthood appealed to the Supreme Court.
The legal fight over the law is not over, but the state is now free to enforce it, at least for the time being. Planned Parenthood has said that if the law stands, Arkansas would be the only state where women would not have access to a pair of drugs that end pregnancies: mifepristone, which makes it difficult for a fetus to attach to the uterine wall, and misoprostol, which causes the body to expel it, similar to a miscarriage.
The organization offers pills to end pregnancies at clinics in Fayetteville and Little Rock but says it cannot find any Arkansas obstetrician willing to handle hospital admissions. Preventing women from obtaining medication abortions would create an undue burden on their right to an abortion, Planned Parenthood says. Undue burden is the standard set by the Supreme Court to measure whether restrictions go too far in limiting women who want an abortion.
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Judge allows Palin's son therapeutic court for proceedings
Court Watch |
2018/05/23 02:42
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The eldest son of former Republican vice presidential candidate Sarah Palin will go through Alaska's therapeutic court system in a criminal case accusing him of assaulting his father last year at the family home.
State District Judge David Wallace on Tuesday approved Track Palin's request to formally transfer his case to Veterans Court, which gives eligible veterans the option of enrolling in mental health treatment programs instead of a traditional sentence.
The judge also barred the media from using cameras or other recording devices during that proceeding after Track Palin's attorney filed a motion seeking to prohibit or limit media access. Wallace said he will formally rule on the matter later.
The motion to limit media access was filed Friday by Track Palin's attorney, Patrick Bergt, in an effort to ensure the case does not become a distraction to other veterans in the system.
Veterans Court program rules say veterans opt in by agreeing to plead guilty or not guilty to at least one charge.
Bergt declined to say if his client is making such a plea to get into the program, adding he can't comment on specifics of the case. |
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Justices allow Arkansas to enforce abortion restrictions
Court Watch |
2018/05/18 02:43
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The Supreme Court is allowing Arkansas to put in effect restrictions on how abortion pills are administered. Critics of a challenged state law say it could effectively end medication abortions in the state.
The justices did not comment Tuesday in rejecting an appeal from the Planned Parenthood affiliate in Arkansas that asked the court to review an appeals court ruling and reinstate a lower court order that had blocked the law from taking effect. The law says doctors who provide abortion pills must hold a contract with another physician who has admitting privileges at a hospital and who would agree to handle complications.
The law is similar to a provision in Texas law that the Supreme Court struck down in 2016. The 8th U.S. Circuit Court of Appeals reversed the court order barring enforcement of the law, but put its ruling on hold while Planned Parenthood appealed to the Supreme Court.
The legal fight over the law is not over, but the state is now free to enforce the law at least for the time being.
Planned Parenthood has said that if the law stands, Arkansas would be the only state where women would not have access to a pair of drugs that end pregnancies: mifepristone, which makes it difficult for a fetus to attach to the uterine wall, and misoprostol, which causes the body to expel it, similar to a miscarriage.
The organization offers pills to end pregnancies at clinics in Fayetteville and Little Rock but says it cannot find any Arkansas obstetrician willing to handle hospital admissions. Preventing women from obtaining medication abortions would create an undue burden on their right to an abortion, Planned Parenthood says. Undue burden is the standard set by the Supreme Court to measure whether restrictions go too far in limiting women who want an abortion. |
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